It's on! Kirby estate sues Marvel; copyrights to Iron Man, Spider-Man at stake

By Eriq Gardner

 The children of comic book icon Jack Kirby have officially sued Marvel to terminate copyrights and gain profits from such lucrative comic creations as Iron Man, X-Men, The Incredible Hulk and Spider-Man.

The suit, filed in U.S. District Court in Los Angeles, follows the September move by the estate to send out 45 notices of termination to Marvel and owner the Walt Disney Co., as well as Sony, Universal, Fox and others, hoping to recapture control of much of Kirby's work. In January, Marvel filed its own lawsuit, claiming the creations were "work-made-for-hire" and that Marvel was the real "author" of such works under the 1909 Copyright Act.

In the 1950s and 1960s, Kirby was instrumental in conceiving many popular characters and had a big hand with Stan Lee in helping flesh out and draw the Marvel universe. Kirby died in 1994, passing along his interests to his three daughters and one son.

The complaint seeks declaratory relief, including copyright termination and profits. It describes the backstory of Kirby's creative period, particularly from 1958 to 1963, when Marvel existed in a tiny office with few employees and relied upon "freelancers to which they had little or no obligation." Kirby disputes Marvel's work-for-hire theory.

Because Kirby often worked in tandem with others, particularly Lee, the complaint is careful about what the estate believes it is entitled to control: "With respect to Co-Owned Kirby Works, as of the respective Termination Dates, Defendants will jointly own the copyrights to such works for their renewal terms: both Plaintiffs and Defendants will have the non-exclusive right to exploit such jointly owned copyrights..."

In other words, even though various studios currently have a license to produce movies such as "Spider-Man" (Sony) and "X-Men" (Fox), the estate's court action could give it the ability to license competing versions. If it wins termination, that is. Disney and the other studios are sure to throw all of their superpower legal muscle at this fight.

The Kirby estate doesn't state how much it thinks it's owed, but any termination of copyrights could be worth tens of millions of dollars, if not more. Last year Disney bought Marvel for a whopping $4 billion.

One surprise in the lawsuit is an unexpected claim under the Lanham Act. The lawsuit targets two films, "The Incredible Hulk" released in 2008 and "X-Men Origins: Wolverine" released last year, as films that it claims were misrepresented in commercial advertising and promotion. The estate claims that Kirby was not properly identified as being the author or co-author of these works. The estate is seeking "up to three times the damages they sustained and will sustain," which isn't specifically identified, but could be significant. "Wolverine" made almost $375 million in worldwide gross.

Here's the full complaint filed by Marc Toberoff, attorney for the Kirby estate. Toberoff also is battling Warner Bros. over Superman on behalf of the Jerry Siegel estate.